Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. This second appeal was filed by the judgment debtor against whom a decree has been passed by the trial court against the order of Addl. District Judge No. 2, Jodhpur dt. 17.9.1992 holding that the appeal filed by him is barred by seven days and there is no sufficient cause for condoning the delay in filing the appeal.
3. The contention of the appellants has been that the lower Appellate Court has erred in holding the appeal to be barred by time inasmuch as it has not rightly computed the period of limitation for filing the appeal in the present case in accordance with the provisions of limitation act keeping in view Section 12 of the said Act.
4. Mr. Chhangani, learned Counsel appearing for the respondent urged that order rejecting appeal is barred by time is not a decree, and therefore, no appeal is maintainable. For this learned Counsel relied on a decision of Rajasthan High Court in Chhelaram v. Manak (RLW 1997 (1) 264).
5. Prima facie it appears to be a case in which the attention of the Court has not been invited to the fact that word 'decree' not only includes formal expression of an adjudication but also includes rejection of a plaint and the rejection of a plaint takes place when the suit is held to be barred by time. Where the rejection of plaint can take place if the suit is held barred by time under Order 7, Rule 11 C.P.C., the embargo to entertain plaint which is barred by time emanates from Section 3 of the Limitation Act. On the question whether rejection of an appeal as barred by time can be at parity of reasoning on the ground of general applicability of C.P.C. to appeals can be equated with the rejection of plaint to be considered as a decree under Section 2(2) of C.P.C. has received different Juridical approach. The Calcutta High Court in at least its two earlier decisions viz. Rakhal Chandra v. Ashutosh Ghosh 1913 Calcutta Weekly Notes 807 (D.B.) and Sudhanshu Bhusan Pandey v. Majho Bibi AIR 1937 Calcutta 732 has taken the view that rejection of an appeal as barred by the amounts to a decree within definition of decree under Section 2(2) C.P.C. However, the latter decision of Calcutta High Court in Mamuda Khatoon v. Bentyann Bibi : AIR1976Cal415 has taken a contrary view holding that rejection of appeal as barred by time is not a decree within the meaning of the term an order which can only be subject matter of revision. Be that as it may this controversy need not detain me here without carrying on discussion any further and expressing any final opinion on the question. For the present purposes it need not be decided. Even if the appeal is held to be not maintainable being not against a decree it can be treated as revision without affecting the maintainability and merit of the case. The period of limitation for filing the appeal and revision is the same, and therefore, for the present purposes this appeal is to be treated as revision and is considered as such.
6. The learned Counsel for the respondent urged that whether there existed a sufficient cause for condoning delay in filing appeal is not a question which given rise to a question of jurisdiction and not the Court has committed any material illegality and irregularity in arriving at its conclusion affecting its jurisdiction, the order in question is not revisable.
7. The contention in principle no doubt is true that ordinarily court would not in exercise of its jurisdiction under Section 115 CPC, entertain and interfere the question relating to orders that has been passed in exercise of discretion vested in lower Court and the question whether there was sufficient cause for not filing the appeal within limitation fell within the jurisdiction of the lower Court to decide and its decision in either way does not warrant interference in revision unless a material irregularity and illegality in exercise of jurisdiction resulting in substantial failure of justice is shown to exist. However, in the present case question is not primarily relating to considering whether the petitioner had sufficient cause for not filing the appeal before the lower Appellate Court within limitation. The question raised in this petition is fundamental to the exercise if jurisdiction by the lower Appellate Court. The finding of the lower Appellate Court that the appeal itself was barred by limitation was challenged and if that finding is found to be erroneous it will be a case of failure to exercise jurisdiction vested in it by law inasmuch as the appeal filed before lower Appellate Court was within limitation it would have no jurisdiction to reject it on that ground.
8. The question of considering the sufficient cause for not filing the appeal within limitation is only ancillary and subservient to the main issue whether the appeal was filed within limitation and if that is decided against the appellant petitioner then the question would arise whether in the circumstances delay ought to have condoned.
9. In the present case the facts necessary for the purpose of finding the period of limitation for filing appeal which are verifiable from the record and not controvertable nor have been controverted are as under: The judgment and decree was passed by the trial Court on 12.2.1987. On 13.2.1987 copy of Judgment on which decree was founded was applied for. The date fixed for its delivery was 16.2.1987 but the same was not ready on 16.2.1987 and was ready only on 20.2.1987. Notice of the fact that the certified copy was ready for delivery was published on 21.2.1987 and on that very day the appellant took the delivery of certified copy of judgment. Thereafter on 19.3.1987 the appellant applied for copy of decree. The date fixed for delivery was 26.3.1987. However, the copy was ready prior to that date and actual delivery of decree was taken by the appellant on 21.3.1987. The appeal was filed on 21.3.1987 itself along with copy of judgment and decree appealed against. The Appellate Court held the appeal to be barred by time primarily on the ground that since application for certified copy of decree appealed against has not been filed within 30 days, the period prescribed for filing appeal from 12.2.1987, he cannot take advantage of excluding the time requisite for obtaining certified copy of the judgment and decree, and therefore, the appeal filed on 21.3.1987 was 7 days beyond the expiry of limitation from 12.2.1987.
10. Learned counsel for the petitioner urged that in view of the provisions of Section 12 of the Limitation Act the time requisite for obtaining the certified copy of the judgment on which the decree is founded as well as the decree are both to be excluded. Therefore, when the appellant has applied firstly for the copy of the judgment on which decree is founded on 13.2.1987, the next day of pronouncement of judgment. It is an essential document for making up mind whether to file appeal against decree or not. The same was delivered to him on 21.2.1987 only after notice of delayed preparation of certified copy of the judgment was published. If this period is taken into account, as envisaged u/s. 12(3) of the Limitation Act, as on date copy of judgment was delivered he could file appeal by 23.3.1987, the application for certified copy of decree on 19.3.1987 was within limitation after excluding the time requisite for obtaining certified copy of the judgment.
11. Learned counsel for the respondent vehemently urged that since appeal has been provided against decree only, the certified copy of the decree ought to have been applied within limitation for filing appeal and mere applying for certified copy of the judgment within the period of limitation for filing appeal was not sufficient to save the period of limitation running out on expiry of 30 days. If the period of limitation is computed without excluding the time taken for obtaining certified copy of the judgment, the application for certified copy of judgment was beyond limitation and cannot save the appeal from being barred by limitation.
12. Having given my careful consideration, I am of the opinion that the petitioner's contention merits acceptance. Section 12 of the Limitation Act reads as under:
12. Exclusion of time in legal proceedings.-(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.
Explanation.-In computing under this Section the time requisite for obtaining a copy of a decree of an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.
13. It is of significance that Sub-section (2) of Section 12 of the Limitation Act envisages exclusion of time requisite for obtaining a copy of decree sentence or order appealed from in computing the period for an appeal or an application for leave to appeal or revision or review. This is with reference to the order or decree from which an appeal lay. Obviously where an appeal is against a decree under Sub-section (2) what is envisaged is exclusion of time requisite for obtaining a copy of decree. However, the legislation being conscious of the fact that notwithstanding the fact that decree is a fundamental expression of rights adjudicated by the Court the grounds on which adjudication finds place is the judgment on which decree is founded and is an essential document required to be produced along with memo of appeal Under/order 41, Rule 1 C.P.C. read with Rule 132 of Rajasthan High Court Rules without which appeal is incomplete, it provided under Sub-section (3) specifically that in the cases where a decree or order is appealed the time requisite for obtaining a copy of the judgment or order on which the decree is founded shall be excluded. The exclusion of time requisite for obtaining a copy of judgment or a copy of decree have not been subjected to any order or precedence in obtaining for the purpose of computation of period of limitation. It is well established and that is no contention about it either that in order to claim exclusion it is not essential that the judgment and decree, where an appeal is to be preferred, are to be applied simultaneously. Even when the applications have been made successively a litigant is entitled to exclude the time requisite for obtaining copies of judgment as well as decree. There does not appear to be any provision which requires that applications have to be applied in particular order. It is to be noticed that right to appeal is against decree which comes into existence on the date adjudication is made. The period Prescribed for filing appeal is to see that such right may be exercised within reasonable period with some promptitude so the parties to lis may know the position of litigation. The provision like Section 12 of the Limitation Act is machinery provision in furtherance of making the right of appeal effective and meaningful and avoid unmindful proliferation of appeals. Decree as well as judgment on which decree is founded have been considered essential documents to accompany memo of appeal for the reason that appellate court has complete view of the issues determined by lower court. The provisions which are to felicitate and not be strangulate the legitimate remedies, cannot be riddled with mere technicalities to defeat its purposeful expanse, in the absence of any such statutory limitation. In whatever order the applications for obtaining copies of requisite documents have been applied and obtained, subject of course to one limitation that such copy must have been made while the time for filing an appeal had not expired on computation being made in accordance with the provisions of the Act which also include Section 12, the time requisite for obtaining such copies will have to be excluded.
14. For the purpose of finding whether an appeal is in limitation or not under Sub-section (1) of Section 12 the day from which such period is to be reckoned is to be excluded. In the present case for that reason 12.2.1987 the day on which judgment and decree of trial court was pronounced had to be excluded. Under Sub-section (3) the time requisite for obtaining a copy of the judgment on which decree is founded shall also have to be excluded on that ground from 13.2.1987 to 21.2.1987 time taken for obtaining certified copy of the judgment has to be excluded under Section 12(3). If these two ingredients of computing period are kept in mind, as on 19.3.1987 when copy of decree was applied for the time for presentation of appeal was still there inasmuch as after excluding the period of the date of the decree under appeal and time taken for obtaining certified copy of the judgment, the appeal could be filed by 23.3.2987. It is a different matter that by 23.3.1987 an appeal if were to be filed without decree would have been incompetent under Order 42 which requires a decree to be filed along with memo of appeal. Appeal filed up to 23.3.1987, if otherwise complete in all respect would have been within limitation. The application for certified copy of the decree was made prior to 23.3.1987 on 19.3.1987, and therefore, the appellant was also entitled to exclude time taken in obtaining certified copy of the decree founded on the judgment copy of which has already been obtained by the appellant. The time requisite for obtaining certified copy of the decree was 3 days viz, 19, 20 and 21st March, 1987 when copy was actually delivered, taking into account that period appeal could be filed by 26.3.1987 but prior to that date it had been filed, on 21.3.1987. It has to be reckoned that the appeal has been filed within time.
15. In my aforesaid conclusion I am fortified with the decision of this Court in the case of Nande and Ors. v. Nanga (RLR 1988 (1) 970) wherein the question has arisen in the like circumstances. The first appeal has been dismissed as barred by time by taking the view that application for obtaining certified copy of the decree was itself filed after 30 days, the limitation for filing the appeal before the Court other than High Court, though the application for obtaining certified copy of the judgment on which such decree was founded has been applied on 22.10.1983. The judgment in the case has been pronounced on the same day. The appellant had applied for the certified copy of the judgment on that very day which was made available to him on 15.12.1983. The appellant, thereafter, applied for certified copy of the decree on 16.12.1983 which was delivered to him on 20.12.1983 yet the lower appellate Court has held appeal to be barred by time not excluding the time taken in obtaining certified copies of judgment and decree by holding that certified copy of decree was not applied for within 30 days. In the circumstances, repelling the contention and overturning the reasoning of the learned Addl. District Judge the Court said.
From the above facts it is abundantly clear that the application for copy of the decree had been applied on 16.12.1983 and till that date, the defendant-appellant had time to file appeal after excluding the time in obtaining the certified copy of the judgment. From 24.12.1983 to 1.1.1984 there was winter vacation and the first appeal in both the cases were filed on 2.1.1984. In view of these circumstances the learned Additional District Judge committed a clear error of law in holding the first appeals as time barred. The defendant-appellants were entitled to the exclusion of time u/s. 12 of the Limitation Act in obtaining certified copies of judgment as well as decree and while excluding such time, the appeals were clearly within limitation on 2.1.1984.
The Court in support of this conclusion has referred to Om Prakash and another v. Km. Sohan Devi and Ors. : AIR1956All435 and Murlidhar Shrinivas v. Motilal Ramcoomar AIR 1937 Bombay 162. I am in respectful agreement with the aforesaid.
16. Learned counsel for the respondent has also relied on a decision of the Rajasthan High Court in State of Rajasthan v. M/s. Jaipur Hosiery Mills (Put) Ltd. and Ors. . In my opinion the case has no relevance to the present case. That was a case in which the second appeal had been filed which was not accompanied with a copy of the judgment of the Court of first instance as the appeal was directed against an appellate order and such copy of the judgment of the Court of first instance has been filed after filing of the appeal. Present is not a case where the appeal was not accompanied with required document. Moreover it appears with utmost respect that for the purpose of computing period of limitation attention of the Court was not at all invited to the provisions of Section 12 of the Limitation Act about exclusion of time requisite for obtaining certified copies of the judgment and decree where period for limitation is to be computed for preferring an appeal against a decree. Therefore, the judgment also appears to be per-incuriam.
17. In view of the aforesaid, the second question whether the petitioner had sufficient cause for condonation of delay does not arise for consideration inasmuch as no occasion would arise for condonation of delay. Even assuming other way round when a person acts bonafide in acting considering to be in accordance with law which legal position is ultimately determined by court to be against him, in my opinion, it do offers sufficient cause for condoning the delay inasmuch as the provision has to be exercised reasonably and in furthering the cause of justice and not to punish a litigant who is not otherwise negligent.
18. The appeal turned into revision is allowed, the order under challenge is set aside and lower Appellate Court is directed to register the appeal filed by the appellants as the same is held to be within limitation and proceed in accordance with law. There shall be no costs of this appeal.